Fraud and Misrepresentation

Background

INA § 212(a)(6)(C)(i) was intended to prevent foreign nationals from attempting to enter the United Stated by fraudulent means. The penalty for fraud and willful misrepresentations is a lifetime bar to the U.S., unless the foreign national successfully is able to have the fraud charge vacated or obtains a waiver of the same. SRW's attorneys have been successful in resolving numerous border problems stemming from allegations of fraud by: (1) having the charge removed from the client's record based on the fact that it was improvidently charged, or (2) by preparing a strong waiver application.

A charge or allegation of fraud will have serious implications on your ability to enter the U.S. In some cases, determinations on whether to issue a fraud charge is made by Customs and Border Protection ("CBP") officers with little oversight, and generally with no judicial review. Thus, an individual seeking any immigration benefits (e.g. a visa) must proceed with caution in light of the fact that a "lifetime bar" decision rests in the hands of enforcement minded officers.

Difference between "fraud" and "misrepresentation"

The Board of Immigration Appeals ("BIA") has determined that a finding of "fraud" requires a determination that a foreign national (1) made a false representation of a (2) material fact (3) with knowledge of its falsity and (4) with the intent to deceive a consular or immigration officer. Further, (5) the representation must have been believed and acted upon by the officer.

On the other hand, "material misrepresentation" includes only a (1) willful misrepresentation, which is (2) relevant to the alien's visa entitlement. It is not necessary that an "intent to deceive" be established by proof, or that the officer believes and acts upon the false representation. [USCIS AFM 40.6].

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